1. The petitioner was appointed as Junior Clerk in District Panchayat, Kutch on 01.11.1966. He was promoted as Senior Clerk on 21.01.1982. He was working in the Administrative Wing of the respondent Panchayat and retired from the post of Senior Clerk on 30.09.2000 on attaining the age of superannuation. In the year 1992, this petitioner had approached this Court by preferring a petition under Article 226 of the Constitution of India being Special Civil Application No.6128 of 1992, wherein the action of the respondent Panchayat, of allocating the petitioner from Administrative Wing to Accounts Wing was challenged. At the time of entertaining the petition, status quo was granted, which had continued during the pendency of the said petition and thus, the petitioner continued in administrative wing and retired from the post of Senior Clerk on 30.09.2000, as aforesaid. Since the petition was pending, the authorities did not promote him on higher post from the post of Senior Clerk and insisted that since the petitioner had not accepted the promotion in Accounts Wing and further since the issue was pending before the Court, nothing was done in view of the status quo granted by this Court.
2. The said petition, i.e. Special Civil Application No.6128 of 1992 came to be allowed on 4.10.2002 by the judgment of this Court (Coram: Hon'ble Mr.Justice J.M.Panchal, as his Lordship then was). The relevant part of the judgment reads as under:-
"2. In paragraph 13 of the petition it was mentioned by the petitioner that on the date of filing of the petition he was working in Clerical Cadre and, therefore, it was necessary to restrain the District Panchayat from implementing seniority list finalized on August 8, 1988. The Court while entertaining the petition had directed the parties to maintain status-quo.
3. During the course of hearing of the petition, Mr.H.S.Munshaw, learned counsel for the respondent No.1, has stated at the Bar that the petitioner retired from service on September 30, 2000 while serving on the post of Senior Clerk (Clerical Cadre) and though he was allocated to Accounts Cadre, he was continued in Clerical Cadre due to the Court proceedings. In view of this subsequent event, I am of the opinion that the prayer made by the petitioner to set aside and quash the final seniority list of Clerks working in Accounts Cadre prepared on August 8, 1988, has become infructuous and need not be considered by the Court on merits.
4. The learned counsel for the respondent no.1, on instructions, has further stated at the Bar that when the petitioner retired from the post of Senior Clerk (Clerical Cadre) he was placed in the pay-scale of Rs.4000-6000, and is being paid pension on that basis regularly. It is also stated at the Bar that the petitioner has already been paid gratuity, commutation of pension and other benefits. However, there is no manner of doubt that if the petitioner had been treated as belonging to Clerical Cadre, his case would have been considered for higher pay-scale of Rs.5000-8000 and that the same has not been considered by the respondent no.1 due to pendency of the present petition. Under the circumstances, I am of the opinion that interest of justice would be served if the petitioner is directed to make a representation to respondent no.1 for giving him benefit of higher pay-scale of Rs.5000-8000, and the respondent no.1 is directed to consider the same within the time to be stipulated in this order."
3. With the above observations and finding to the effect that the case of the petitioner should have been considered for higher pay scale of Rs.5000-8000, this Court directed the petitioner to make representation to the District Development Officer, Kutch, which was made and which was decided by the order dated 13.02.2003 passed by District Development Officer, Kutch holding that the petitioner is not entitled to higher pay scale of Rs.5000-8000. That rejection was projected to be due compliance of the direction given by this Court on 04.10.2002 in Special Civil Application No.6128 of 1992. Passing of the said order dated 13.02.2003, according to the present petitioner, was contempt of this Court, on the face of observations, findings and directions of this Court as contained in judgment dated 04.10.2002 in Special Civil Application No.6128 of 1992 and therefore, Misc. Civil Application No.1852 of 2003, under the Contempt of Courts Act was filed before this Court. While hearing the said application, the Division Bench of this Court, ordered that the said application be treated to be and converted as a petition under article 226 of the Constitution of India, and the legality and validity of the order passed by the authorities on 13.02.2003, be examined by Single Judge of this Court and therefore, the said Contempt Petition was converted as Special Civil Application No.14157 of 2003, which is the present one, which is being considered by this Court.
4. I have heard learned Advocate Ms.Krishna Rawal for the petitioner, Mr.H.S.Munshaw for District Development Officer, Kutch and Ms.Trusha Mehta, learned Assistant Government Pleader on behalf of the Government.
5. It is contended by learned Advocate for the petitioner that the petitioner was wrongly allocated to Accounts Wing of District Panchayat, Kutch and the petitioner had never done the accounts work, either as a Junior Clerk of as a Senior Clerk and according to him, the respondent authorities ought not to have allocated the petitioner in Accounts Wing from Administrative Wing. Be it noted that the controversy in the present petition is not whether the petitioner ought to have been continued in Administrative Wing or in Accounts Wing. That was the controversy in Special Civil Application No.6128 of 1992, but since that came to be finally heard and decided on 04.10.2002 and the petitioner had attained age of superannuation much before that, i.e. on 30.09.2000, this Court had thought it fit not to pronounce upon that issue, inter alia recording the fact that since status quo was granted in favour of the petitioner at the time of entertaining Special Civil Application No.6128 of 1992 and that the said status quo had continued all throughout the pendency of the said petition, in effect, the petitioner continued to be in Administrative Wing and the decision of the respondent authorities of treating the petitioner, having been allocated the Accounts Wing never came to be implemented. On the face of these undisputed facts as reflected in the judgment dated 04.10.2002, this Court in unequivocal terms, more particularly in para-4 of the said judgment, which is already reproduced hereinabove, inter alia observed and found that the case of the petitioner should have been considered for higher pay-scale of Rs.5000-8000.
6. This judgment dated 04.10.2002 is not carried in appeal either by District Panchayat, Kutch or State of Gujarat. The judgment, including observations and findings therein, binds, both the authorities. The impugned order dated 13.02.2003 holding that the petitioner is not entitled to higher grade scale corresponding to that of Senior Clerk, (which would come to be that of Head Clerk, which was Rs.1400-2600 prior to revision of pay effective from 01.01.1996, which came to be revised as Rs.5000-8000 with effect from 01.01.1996, which is referred to in the judgement dated 4.10.2002), is not only illegal and arbitrary but is in straight conflict with the finding recorded by this Court in the judgment dated 04.10.2002 in Special Civil Application No.6128 of 1992. In my view, this action itself amounted to contempt of this Court, however, since while hearing the contempt application, which is this one itself, when the Division Bench was of the view that since fresh order dated 13.02.2003 is passed which can be examined by Single Judge of this Court, I leave the matter there, since even on merits, on the basis of material on record and after hearing learned Advocates for both the respondents, I find that the petitioner on completion of 9 years service in the pay scale of Senior Clerk, is entitled to the next higher pay scale, which was Rs.1400-2600, revision of which is Rs.5000-8000 with effect from 01.01.1996. Thus, the entitlement of the petitioner is already declared once in the judgment dated 04.10.2002 and independent of it also, this Court also comes to the same conclusion that the petitioner is entitled to it. Under these circumstances, the order dated 13.02.2003, which was the cause of action for approaching this Court, is held to be illegal and arbitrary and the same is required to be quashed and set aside.
7. For the reasons and findings recorded above, the impugned order dated 13.02.2003 passed by District Development Officer, Kutch is quashed and set aside.
8. It is reiterated that the petitioner is entitled to the pay scale of Rs.5000-8000, (pre-revised pay scale of Rs.1400-2600), on completion of his 9 years service as Senior Clerk. Since the date of promotion of the petitioner as Senior Clerk was 21.01.1982, on completion of 9 years service from that date, i.e. from 01.02.1991, the petitioner is entitled to pay scale of Rs.1400-2600 prevailing then, and pursuant to general revision of pay with effect from 01.01.1996, he is entitled to pay scale of Rs.5000-8000, which is referred to in para-4 of the judgment dated 04.10.2002 in Special Civil Application No.6128 of 1992. Respondents are directed to issue necessary orders in this regard within a period of two months from today and pay all consequential benefits to the petitioner, as directed here under.
Arrears of pay on such revision of pay, till the date of retirement (30.9.2000) shall be paid to the petitioner within a period of four months from today. Calculation in this regard shall be given to the petitioner.
Consequential arrears of difference in his retirement dues, such as gratuity, commutation of pension, leave encashement and monthly pension shall also be paid to the petitioner within a period of four months from today. Calculation in this regard shall be given to the petitioner.
Any other dues payable consequential to this revision of pay shall be paid to the petitioner within a period of six months from today.
9. The petition is allowed to the aforesaid extent. Rule made absolute with no order as to costs.
(PARESH UPADHYAY, J.) *Shitole Top